Judge Rudy Reports: Early Probation
Q: I RECENTLY HAD SHERIFFS COME into my residence for a computer tampering offense. They took the com- puter they believed it was done on, but left others. Are they allowed to come back and seize any other of my comput- ers because they did not find anything on the first one and hence failed on their end?
Answer: The issue is whether the war- rant is considered “stale.”
Michigan law requires that a search warrant be based on “all the facts.” The “totality of the circumstances” must be explained in the warrant request. Time is one of those circumstances.
The facts must show “probable cause.” Probable cause for the issuance of a search warrant exists if there is “a sub- stantial basis for inferring a fair probabili- ty that contraband or evidence of a crime exists.” In other words, the facts must show that a crime was probably commit- ted and that you probably were involved. The level of proof required to get a search warrant is low.
The nature of the crime charged is also a factor. The law says in determining whether information is stale, we consider factors such as “whether the crime is a single instance or an ongoing pattern of protracted violations [and] whether the inherent nature of a scheme suggests that it is probably continuing.”
In your case, the charge relates to a continuing enterprise. This makes it a bit easier to argue that a new warrant is not required. Even if not required, however, the best practice would be to get a new warrant.
If another search is done, you e need to get a lawyer and file a “Motion to Suppress” the evidence seized.
The law also requires that the officers who conduct the search provide a “tabulation” of everything seized. They are required to leave a copy of this inventory and to file a copy with the court. The law also requires that stolen property be promptly returned to the owner and that other property be disposed of as directed by the judge.
In my opinion, once the officers have m executed a search warrant and provided a tabulation, the warrant is fulfilled and expired. It is, after all, a ”search” warrant, and not a “search and research” warrant.
Generally, the law would not allow officers to get a warrant and execute it today, and then go back day after day with the same warrant. Similarly, if the police get an arrest warrant and arrest you today, they cannot wait until the proceedings end and then arrest you again with the same warrant.
This answer does not resolve your concern. If the officers don’t find evidence on the computer they seized, it wouldn’t be difficult to get another warrant issued if there is “probable cause.”
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